Guidelines let a university deny accused access to a lawyer

In 2011 the Obama Education Department used a controversial process to impose on colleges and universities an extraordinary standard for investigating sexual abuse claims. Many legal scholars, including Janet Napolitano, a former Obama administration official who now leads the University of California system, have argued that they grossly subverted justice and the rights of the accused.

U.S. Secretary of Education Betsy Devos recently announced plans to repeal the policy after allowing time for comments. The following is one case study that illustrates why the Obama policy was so problematic.

Although he didn’t know it at the time, Drew Sterrett’s life was irreversibly changed one night in March 2012. Sterrett, then an engineering student at the University of Michigan, told a female friend who lived in his dorm that she could stay overnight in his room because her roommate was having guests. That action was later followed by a university investigation, a lawsuit, and his departure from the university.

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While Sterrett claims he thought his friend would sleep on a mat on the floor, the two ended up having sex in his bunk bed, according to court documents. The next morning, the two agreed the encounter was a mistake. The school year ended without further incident.

The sexual encounter came back to haunt Sterrett that summer. The woman, identified in court documents as C.B., filed a sexual misconduct complaint against him with U-M’s Office of Institutional Equity, claiming she had not given consent. University officials contacted Sterrett via Skype to interview him and inform him about the charges against him. He never received a written notice, though, and was eventually suspended until 2016, a year after C.B.’s anticipated graduation date.

Sterrett told Salon that the time between being accused of sexual assault and the charges being dropped was “emotionally difficult, debilitating and crushing at times.”

Earlier this month, Secretary of Education Devos announced that she would begin rescinding Obama-era guidelines on cases such as those involving Sterrett and C.B. Critics of those guidelines have said they create an environment in which individuals accused of sexual assault are not given their constitutionally protected due process rights. During her confirmation hearings, a member of the U.S. Senate questioned her commitment to justice in matters of sexual assault.

In a speech at George Mason University on Sept. 7, Devos said, “No student should be forced to sue their way to due process.”

According to a poll recently released by Rasmussen Reports, 73 percent of Americans agree with Devos’s statement that "every survivor of sexual misconduct must be taken seriously. Every student accused of sexual misconduct must know that guilt is not predetermined.”

While the Trump administration has not laid down specifics of its own policy, Devos suggested that school administrators get more insight from medical professionals, counselors, clergy and law enforcement. She also suggested schools and state attorneys general work across state lines to form regional centers that offer support to universities seeking help in investigating sexual assault.

The guidelines released during the Obama administration told university administrators how they should conduct sexual assault hearings outside the legal system. The guidelines use a “preponderance of the evidence” standard of guilt, which is much lower than the “beyond a reasonable doubt” standard used in courts. The guidelines also let a university deny accused individuals access to a lawyer during its investigation.

While acknowledging the horrible nature of sexual assault, Devos said the due process rights of both the complainant and the accused must be respected.

The Obama-era guidelines have resulted in universities being sued by individuals, like Sterrett, who claim they have been charged with sexual assault without being given due process. The guidelines have also opened universities up to investigations by the Department of Education that could result in their losing some of the money they receive from federal taxpayers.

Joe Cohn, policy director for the Foundation for Individual Rights in Education, said he believes the Obama-era guidelines were effective in putting a spotlight on the important issue of sexual assault on campuses. But, he said, they did so in a way that negatively affected due process rights.

“I hope that over the months that come, when advocates offer input to the department as it creates new policy, instead of litigating things that lead to the rebuke of the previous approach, that they come forward with ideas of how the department can ensure institutions have the resources needed to help rape victims,” Cohn said.

The Republican Party fully controls most states and at the national level has captured the House, Senate and presidency. By many measures, the party has more power than it has had in many decades. But will that control last? And, more importantly, what policy priorities are coming about from these political victories?

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